GPSolo Magazine - July/August 2004

Using Experts Expertly

By Robert A. Zupkus

To retain an expert or not to retain an expert? Much like Hamlet’s soliloquy, this seemingly simple question raises many more complex questions and issues. The purpose of this article is to identify the issues you will need to address with your client in reaching a decision.

How Do I Know If I Need an Expert?

The process of deciding whether you should hire an expert begins the day you first meet with your client. As you sort through the legal issues of your case, you should constantly be asking yourself whether there are factual disputes that involve matters outside the intelligence of an average juror. Too often, attorneys only begin to consider experts as trial nears. This is a mistake. Experts are more than a vehicle through which to introduce evidence to support your case. They can be an integral part of the prosecution or defense of your case. Identifying the need for an expert early can give you a great advantage in the litigation. An expert can assist you in understanding the factual complexities of the case; determining your side’s strengths and weaknesses, and that of your opposition; preparing written discovery and for depositions; neutralizing your opposition’s expert opinions; and assisting with your trial strategy. This is not to say that every case justifies the time and expense of hiring an expert. In many cases there is no place for an expert.

There are generally two types of experts: trial consultants and testifying experts. Trial consultants are experts retained to orchestrate complex aspects of the litigation beyond the understanding of the attorney—for example, the structural engineering of a component in a product liability case. Trial consultants are not witnesses to the litigation, and therefore there are no disclosure requirements. Their notes, opinions, and work product are all privileged from disclosure. In contrast, testifying experts are witnesses. The disclosure of their identity, background, and written opinions are governed under Fed.R.Civ.P. 26(a)(2)(B) and parallel state rules. Failure to comply with these disclosure requirements can be grounds for barring your expert from providing any testimony at trial. A testifying expert’s file is fully discoverable—from notes, drafts, and e-mails, to any documents they have reviewed or relied upon. The disclosure of any privileged communications or documents to your expert waives the privilege. Communications between your expert and you are not privileged. This can be a very sensitive area. A poorly worded engage- ment letter to your expert outlining the opinions you seek or a timeline of facts or fact analysis you prepared can be devastating to the credibility of your expert before a jury. Your expert must always be impartial in the eyes of the jury and clearly give the appearance of impartiality

Choosing an Expert

Selecting the right field of expertise is more challenging than it might seem at first blush. In order to avoid Daubert ( infra ) challenges, your expert must have the right area of expertise, as evidenced by his or her education, training, and employment background. Another critical consideration is the expert’s ability to communicate effectively. You can have the most qualified expert in the country on the witness stand, but if that person cannot convey his or her opinions to the jury in an understandable manner, the testimony will be of no value. And finally, never overlook your client’s pocketbook. Even experts from the same field can have varying fee schedules. For many clients, this may make all the difference. Each of these issues is discussed further below.

Field of expertise and experience. Before you even begin your search for the names of individual experts, you must carefully decide on the field of expertise. For example, an accountant may be allowed to testify about a plaintiff’s loss of future earnings but not about a plaintiff’s future ability to return to work. The standard for the admission of expert testimony is governed by F.R.E. 702, which provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” There is not a uniform interpretation of this rule among all the jurisdictions, and therefore you must review the case law of your particular jurisdiction. In federal cases, the U.S. Supreme Court has rendered several opinions in Frye v. United States, 293 F. 1014 (1923); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); and Kumho Tire Co., Ltd., et al. v. Carmichael et al., 119 S. Ct. 1167 (1999). Volumes and volumes of material have been written about these cases, and it is beyond the scope of this article to address them. However, some important considerations in determining whether an expert is qualified are education, training, publications, teaching, research, and the acceptance of his or her research methods and techniques in the community. No one factor is determinative, and the outcome of whether to allow expert testimony depends upon the nature of the issue, the expert’s particular expertise, and the subject of expert testimony.

Experts’ communication skills. Per-haps the most important consideration in choosing an expert is his or her ability to communicate effectively. No matter how brilliant the expert is or how impressive the résumé, an expert is of little value if an average juror cannot understand the testimony. When interviewing prospective experts, ask hypothetical questions and pay attention to the responses. Is the expert articulate? Does the expert have a heavy accent that is too much of a distraction? Does the expert favor the use of hyper-technical jargon? Observe the expert’s appearance and demeanor. Even an expert with impeccable credentials will be disfavored by a jury if he or she appears to be arrogant or condescending.

Expert compensation. Most of our clients are wary of the costs of litigation. Obtaining approval to hire an expert for several thousand dollars will not be met with enthusiasm. As the attorney, it is your role to advise your client about the benefits of hiring an expert. Make sure to get a copy of the expert’s fee schedule, in addition to his or her résumé and curriculum vitae, list of publications, and testimony list. Your clients will appreciate it and be more understanding it if they are involved in the decision-making process and are able to compare and choose from a list of experts.

Some experts require the signing of a fee agreement. Avoid signing on behalf of your firm. Instead, have your client sign the agreement. This serves two important purposes. First, your client’s signature is a confirmation of the authorization to hire that expert; and second, if there is ever a dispute over the payment of the expert’s fees, you and your firm are not the ones left holding the bill. On this point, though, do check your state ethical considerations and disciplinary rules. And do make sure there is no conflict between the expert fee agreement and your own fee agreement with your client, particularly if you are advancing costs on behalf of your client.

Resources in Finding Experts

Once you have identified your needed field of expertise, one of the best expert resources is your colleagues. Ask them whom they have used in the past, whom they recommend, and which experts have survived Daubert challenges. An expert who has previously been allowed to provide expert testimony in a given area in another case is certainly better than an expert who has not. Do not wait until after you have retained an expert to find out his or her reputation in your community. Some experts are notorious for their bias and may very well taint your case before the jury.

Also consult with jury verdict reporters in your jurisdiction, if available. This is an easy way to keep an eye out on the names of experts who are being used, and for what types of cases.

Other resources on the web include www.tasa.com, www.deponet.com, www.jurispro.com, www.expertpages.com, and www.world-classexperts.com. There are also expert advertisements that frequently appear in the ABA Journal. The utility of these resources depends on your geography and the field of expertise you are seeking.

All witnesses or potential witnesses in a case are in fact members of your client’s trial team. As counsel, you are the head coach of that team. You must be certain that each team member, including the expert, thoroughly knows your playbook. Each team member must be prepared for the trial challenge.

Robert A. Zupkus is a partner at Zupkus & Angell, P.C., in Denver, Colorado, and specializes in insurance coverage and commercial matters. He is frequently an expert witness and frequently utilizes expert witnesses in his practice. He can be reached atrzupkus@zalaw.com. Eric Amat y Leon, of Zupkus & Angell, P.C., assisted with this article.